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Vadlamanati Venkatanarayana Rao Vs. Gottumukkule Venkata Somaraju - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1937Mad610; 171Ind.Cas.101
AppellantVadlamanati Venkatanarayana Rao
RespondentGottumukkule Venkata Somaraju
Cases ReferredChelamayya v. Varadayya
Excerpt:
hindu law - debts--father--son's liability--suit against father as representative of joint family--decree against, in such capacity--whether binds joint undivided son, even if not party to suit--decree, if can be executed after father's death against joint family in hands of son--pre-decree partition, if can be pleaded--civil procedure code (act v of 1908), section 53--scope--father as manager of hindu joint family incurring liability in personal capacity--liability enforceable against property in hands of son--section 53, if applies--decree against father in respect of pre-partition debt binding on property allotted to son--section 53, if applies--' debt,' scope of. - venkatasubba rao, j.1. this appeal has been brought against an order made by the lower court, refusing execution against the respondent. the decree that was sought to be executed was one passed in 0. section no. 7 of 1922 inter alia against the respondent's father, who was defendant no. 5 in the suit. into the chequered history of ,that suit, it is unnecessary to enter; it is sufficient to state for the present purpose, that the suit itself was commenced in 1919 (it was originally numbered as 96 of 1919), that a decree for possession was passed against defendant no. 5 in may 1933, that in execution of that decree the plaintiff obtained possession of the lands in october of the same year and that by a further judgment delivered on april 3, 1935, mesne profits were awarded against defendant.....
Judgment:

Venkatasubba Rao, J.

1. This appeal has been brought against an order made by the lower Court, refusing execution against the respondent. The decree that was sought to be executed was one passed in 0. Section No. 7 of 1922 inter alia against the respondent's father, who was defendant No. 5 in the suit. Into the chequered history of ,that suit, it is unnecessary to enter; it is sufficient to state for the present purpose, that the suit itself was commenced in 1919 (it was originally numbered as 96 of 1919), that a decree for possession was passed against defendant No. 5 in May 1933, that in execution of that decree the plaintiff obtained possession of the lands in October of the same year and that by a further judgment delivered on April 3, 1935, mesne profits were awarded against defendant No. 5 who subsequently died in the following June. (To avoid confusion it may be stated that the formal decree drawn up in respect of mesne profits bears a later dale, namely July 22, 1935, but that is a circumstance which is immaterial;. The plaintiff-appellant applied for execution in February 1936, praying first, that the respondent (i.e., defendant No. 5's undivided son) might be brought on the record as his legal representative and secondly, that the decree for mesne profits might be executed against the co-parcenary property in his bands. The respondent contested the plaintiff's right, relying upon a partition said to have been entered into on February 1, 1931, between his father and himself. The facts alleged by him are these: Under the partition the lands in dispute along with certain other items of co-parcenary property were allotted to the father who two days later settled these properties upon his wife (the respondent's mother) by a deed of gift dated February 3, 1931. He contended that in those circumstances the decree passed against his father could not be executed against the joint family property which fell to his share. This contention the lower Court, upheld, finding as a fact that the partition set up was a genuine transaction. The plaintiff, who has filed this appeal, impeaches the correctness of the learned Subordinate Judge's order.

2. It may be convenient to set out here a few more facts connected with O.S. No. 7 of 1922. Along with defendant No. 5 his two adult sons were impleaded as defendants Nos. 6 and 7, but the respondent himself was not joined, he being then an infant. Those two sons put forward an oral partition alleged to have been entered into between themselves and their father in 1912. They asserted that they were not in possession of any of the items claimed, as the entire lands in dispute bad been allotted to their father. Their contention was accepted and they were exonerated. So far as the plaintiff's claim to mesne profits was concerned, as the decree awarded profits only from 1910 onwards, defendants Nos. 6 and 7 were held not liable, apparently on the ground that the mesne profits decreed were in respect of a period subsequent to the partition: see the order embodying the finding at p. 172, and the judgment of Ramesam, J. at p. 153 of the Privy Council Pleadings Book. Pausing here for a moment the fact that emerges from this brief narrative is that defendant No. 5 was sued as representing the family in respect of his joint family property. In fact the addition of defendants Nos. 5 and 7 makes no difference as the claim against defendant No. 5 was in essence one made against him as representing his branch of the family. The view that prevailed in the suit was, that defendants Nos. 6 and 7 possessed no interest in the joint family property and should therefore, be regarded as having' been unnecessarily impleaded. The following passage bearing on this point from the order embodying the finding may in this connection be quoted:

Coming now to defendants Nos. 5 to 7, they form one group. Defendant No. 5 is the father and defendants Nos. 6 and 7 are his sons by his first wife. Defendant No. 5 has another son by his second wife and they two are living together as members of a joint family. The contention of these defendants is that the lands in suit, so far as they are admitted to have been in possession of defendant No. 5, are, in the sole possession and that defendants Nos. 6 and 7 were not in possession of them in any of the years under enquiry. Division between the father and the sons in the year 1912 has been set up. Though the partition deed has not been produced, evidence of subsequent acts of the parties dealing separately with their respective shares has been adduced.... The oral evidence on the defendant's side supports the contention of these defendants.

3. Although several questions have been argued, I conceive that the real point to decide is, did defendant No. 5 represent in the action his son, the respondent, who was then a minor, although he was not described as a party on the record? For deciding this question a reference to the pleadings becomes necessary. Defendant No. 5, in the written statement filed by him, describes the lands in question as those in possession of his family and refers to the position of defendants Nos. 6 and 7 in the following terms:

All these items of property fell to the share of defendant No. 5 in the partition of the property of the family of defendants Nos. 5, 6 and 7. Defendants Nos. 6 and 7 have no concern in this suit: para. 7.

6. The present suit, O.S. No. 7 of 1922, is itself the sequel of an earlier suit, O.S. No. 65 of 1908, the facts of which also show that defendant No. 5 was sued as representing his family. That was a mortgage suit filed by the plaintiff and certain others who had a subsisting mortgage right inter alia over the lands in question in the possession of defendant No. 5. The family of defendant No. 5 had acquired these properties under a purchase effected by his father, which shows that they were ancestral properties in the hands of defendants Nos. 5, 6 and 7. The purchase by defendant No. 5's father, it may be mentioned, was subject to the mortgage sued on in the earlier action. In due course a mortgage decree was passed against the mortgagor and various other persons including defendants Nos. 5 to 7, and the properties were in execution of the decree brought to sale and purchased by the mortgagees themselves. It was to recover possession of the lands so purchased that the present suit, O.S. No. 7 of 1922, was filed. Among the persons who contested the suit, was defendant No. 5 who pleaded that it was barred by s 47, Civil Procedure Code, but eventually, as already observed, a decree was passed in favour of the plaintiff.

7. I have narrated these facts at some length, with a view to show that defendant No. 5 was sued as representing his family and that it was in that capacity that he defended the action. The respondent describes himself as being 26 years old in an affidavit filed by him on January 2, 1937, that is to say, during the greater part of the time the suit (O.S. No. 7 of 1922) was going on, he was a minor. He became a major about 1929 but still continued to be represented by his father in the suit. Granting that in the absence of the partition of 1931 he would be bound by the decree passed against his father and that it could be executed against the co-parcenary property in his possession (a point which I shall presently consider) the question arises, does the fact of the partition make any difference? I think the theory of representation must imply that the respondent, though not eo nomine on the record, should be treated as though he himself were a party to the suit. If this be so, it follows in my opinion that unless he has done something which has had the effect of removing him from the record, he must be treated as continuing to be a party till the date of the decree. At any rate, on the facts of this case it is impossible to come to a different conclusion. The lower Court's decree was passed in 1925 and it was, while an appeal from that decree was pending in this Court, that the partition now put forward of 1931 was entered into. Is it to be imagined that the respondent could, at his will, abruptly put an end to the representation which had gone on for about 12 years, producing by his act the strange legal result of his not being bound by the decree to be passed shortly thereafter? I think the answer to this question must be in negative.

8. The decision of this case must in. my opinion really turn on the question whether a managing member can effectively represent the entire joint family in a suit by or against him, and secondly, on the still more important question, whether the decree should show on its face that the claim was made by or against the manager in his representative character. On neither point it seems to me much doubt can be entertained in view of certain Privy Council decisions. In Dowalat Ram v. Mehar Chand 14 I.A. 187 : 15 C 70 : 1 P.R. 1888 : 5 Sar. 84 (P.C.) the facts were these: The plaintiff being a mortgagee and purchaser at an execution sale of the mortgaged property, sued the defendants for a declaration that his purchase included their share of the mortgaged property and was not limited to the shares of the mortgagors who, as the managing members of the joint family to which the defendants belonged, had purported to mortgage the interests of the entire family. This case established two principles: first that the managing member could effectively represent the entire family and that a decree passed against him would be binding upon all the members, and secondly, that it is not necessary that, it should be slated in the pleadings in express terms that he is sued or is being sued as such manager; the suit will be deemed to have been brought by or against him in his representative character if the circumstances of the case show that he is the manager of the family and the property involved is the family property. In the plaint in that suit, the mortgagee claimed not only to recover against the mortgagors the amount of the mortgage debt and interest, but asked that he might have execution and be satisfied out of the mortgaged property. Similarly, in his application for execution he asked, not that he might be allowed merely to seize the right, title and interest of the mortgagors, but that he might be permitted to seize and sell the entire property that had been mortgaged. That the decree (which by the way was not produced before their Lordships) did not contain the words that the mortgagors were sued in their representative character is perfectly obvious.

9. From the provisions of the mortgage deed their Lordships came to the conclusion that what was intended to be mortgaged was the whole of the mortgaged property and not the mortgagor's share alone. Belying upon the facts adverted to above, they held that the circumstances of the case showed that the suit was brought against the managers in their representative character. There is yet another principle, though not material to the present purpose, which this case establishes. The suit, as already stated, was brought by the mortgagee-purchaser and their Lordships observed that the defendants had the opportunity of having the questions tried in that suit, first, whether in fact there was a debt due, and secondly, whether the mortgage was a valid mortgage which bound the ancestral property (pp. 192 and 197;. Without raising those questions, the defendants rested their defence on the ground that they had not been made parties to the suit and consequently their share in the property had not been sold and could not be sold under the execution: p. 195. The result was that the decree was held to be binding upon them, although they had not been made parties to the action. This theory of representation was pushed further in Sheo Shankar Ram v. Jaddo Kunwar 411 A. 216 : 24 Ind. Cas. 504 : A.I.R. 1914 P.C. 136 : 36 A 383 : 18 C.W.N. 968 : 16 M.W.N. 175 : (1914) M.W.N. 593 : 1 L.W. 645 : 20 C.L.J. 282 : 12 M.W.N. 1173 : 16 Bom. L.R. 810 . There was a mortgage suit in which a foreclosure decree was passed against the managing members of a joint Hindu family. They did not avail themselves of their rights to redeem, so that the order absolute was pronounced against them. The other members of the family then brought a suit claiming that they were entitled to redeem the mortgaged properties. Their claim was negatived. The importance of this decision lies in the fact that the mortgagee never had notice < of the fact that the properties had been acquired by the mortgagors on behalf of their joint family (p. 219). That shows that neither were the mortgagors described in the plaint as the managers of the family nor was the decree passed against them in their representative character. But from the circumstances of the case it appeared that the joint family was effectively represented. It may be worth nothing what those circumstances are:

They (the mortgagors) were at the time of acquiring the properties and also at all material times in the foreclosure suits the managers of the joint family and they acted as such both in acquiring the properties and in abstaining from redeeming them.

10. In coming to the conclusion that the mortgagors effectively represented the entire family, their Lordships refer to the findings of the Courts in India (p. 220). In the passage quoted above, I regard the statement that the mortgagors acted as managers even in abstaining from redeeming the properties as most significant. This case shows beyond a shadow of doubt that a decree which does not on its face show that it was passed against co-parcenary, would yet be binding upon the whole family. Lingan Gowda JJod v Basan Gowda gives effect to the same principle. That case referred to certain lands and it was there held that a previous decree which negatived the right of the managing member would, on the ground of res judicata, be binding upon the junior members of the co-parcenary. Their Lordships observe that in such cases the Court looks to Expln. 6, Section 11, Civil Procedure Code, 1908, to see

whether or not the leading member of the family has been acting either on behalf of the minors in their interests or, if they are majors, with the assent of the majors.

11. Then on the facts they came to the conclusion that the plaintiff in the previous suit was acting on behalf of himself and his minor children. It may be mentioned that there was the finding of the Subordinate Judge in the case that the managing member had conducted the previous suit with due care, which amounts to saying, in the words of Expln. 6, referred to above, that the parties litigated in respect of the right claimed, bona fide, in the former action. The three decisions of the Privy Council to which I have referred, relate to immovable property, but the principle of representation applies alike to other transactions as well. In Kishen Prasad v. Har Narain Singh 38 I.A. 45 : 9 Ind. Cas. 739 : 33 A. 272 : 15 C.W.N. 321 : 8 A.L.J. 256 : 9 M.L.T. 343 : 13 C.L.J. 45 : 21 M.L.J. 378 : 13 Bom. L.R. 359 : (1911) 2 M.W.N. 395 the suit was brought in respect, of a loan and the question that was raised was one of limitation The action was originally brought by the managing members of the family and it was held that the joinder of the other members as co-plaintiffs after the expiry of the statutory period did not prevent the suit as originally constituted from being in time. It became necessary to determine whether the members newly added were necessary parties and their Lordships held they were not. In the course of their judgment they refer to two decisions of the Madras High Court. The first case, Pisharody v. Narayanan Somayajipad 3 M. 234 turned on co-ownership of land. Turner, C.J. held that all the owners in such a case must be joined and they could not 'invest the managers with the right to sue in a representative capacity. Their Lordships say that this proposition thus broadly stated as to co-ownership, cannot be applied to the managing members of an undivided Hindu family. Then referring to Alagappa Chetty v. Vellian Chetti 18 M. 33 : 4 M.L.J. 283 their Lordships observe that the proposition there laid down to the effect that a manager cannot sue without joining all those interested with him, if literally construed, gees too far. The decision of the Judicial Committee cited above render obsolete, Viraraqavamma v. Samudrala 8 M. 208 and Guruvappa v. Thimma 10 M. 316 I have refrained from quoting in support of my view the Indian decisions on the point, but to one decision I may refer, where the question has been exhaustively considered by Tek Chand, J.: Jai Kishen v. Ram Chand A.I.R. 1935 Lah. 1 : 157 Ind. Cas. 739.

12. Lastly the question remains, does the fact that subsequent to the suit there was a partition, make any difference? The reason for holding that the members not joined should be held liable is, that they are substantially parties to the suit through the manager, in other words, they are sufficiently represented, though not eo nomine parties on the record. It follows from this, that the decree can be executed not only against the parties whose names appear but also against those who must be deemed to be constructive parties. In this view it is immaterial whether the family continues to remain joint or became divided. As Mayne observes:

All the members of the family, and therefore, all their property, divided or undivided, will be liable for debts which have been contracted on behalf of the family by one who was authorized to contract them. (Mayne's Hindu Law, 9th Edition, Section 333.

13. In this case the partition was, as already stated, entered into prior to the decree though long after the commencement of the suit) but that circumstance, as I have held above, makes no difference. I have dealt with the case on the footing that defendant No. 5 was sued as representing the joint family of which be was the manager; but in addition to being the managing member, he happens to be the father of the respondent. Both the Counsel, therefore, argued the case mainly on the assumption that the decree passed against the father was in respect of his personal debt, which the respondent as his son, was under a pious obligation to discharge. There is a legal duty cast upon the son as upon any other junior co-parcener, to discharge a liability incurred by the father, in his capacity of manager, for the family purposes and it is, therefore, unnecessary! on the facts here to invoke the doctrine of pious obligation. However, as stated above, it was argued that a decree passed against the father alone, though prior to the partition and necessarily, therefore, in respect of a pre-partition debt, cannot be executed subsequent to the partition, against the co-parcenary property, in the hands of the son. As to the soundness of this position, although it is supported by some authority, I entertain considerable doubt and wish to reserve my opinion upon it for the present. It is then contended--that is the next step in the argument--that this position necessarily leads to the result that Section 53, Civil Procedure Code, is inapplicable where before the father's death the son had became divided. With this view again I am not prepared to agree at present, but on this point also I wish to make no final pronouncement. In the result, the appeal is allowed with costs both here and in the Court below.

Cornish, J.

14. If the debt be regarded, as a joint family debt, I agree with my learned brother's judgment. But I think that the same conclusion can be supported upon the view that the decree debt was personal to defendant No. 5. The appellant who had an unsatisfied decree against defendant No. 5 has sought to execute that decree after the judgment-debtor's death against the present respondent as his legal representative. He was, therefore, bound to have recourse to Section 50 of the Code for that purpose. That is the effect of the Full Bench ruling in Kanchamali Pathar v. Shahaji Rajah Sahib 59 M 461 : 162 Ind. Cas. 156 : A.I.R. 1936 Mad. 205 : 70 M.L.J. 162 : (1936) M.W.N. 60 : 43 L.W. 238 : 8 R.M. 946. The liability of the legal representative in respect of such unsatisfied decree is by Section 50, limited to the extent of the property of the deceased judgment-debtor which has come into his hands and has not been duly disposed of by him. That is the sole measure of a legal representative's liability for the debts of the deceased. The share of ancestral property which a son takes in partition with his father ceases to be property in which the father has any right or proprietorship. Such share becomes the separate property of the son as against his father. But it has been decided by the Full Bench in Subramania Iyer v. Sabapathy Iyer 51 M 361 : 110 Ind. Cas. 141 : A.I.R. 1928 Mad. 657 : 54 M.L.J. 726 : (1928) M.W.N. 46 : 27 L.W. 688 that the liability of the son under Hindu Law for a debt incurred by his father continues notwithstanding a later partition between them. The creditor can enforce that liability against the son. The share, however, which a son has taken in a partition with the father is certainly not property of the father which after his death forms part of the father's estate in the hands of the son. But then comes the special provision of Section 53, which says that, for the purpose of Section 50, property in the hands of a son, which is liable under Hindu Law for the payment of a debt of the deceased ancestor, in respect of which a decree has been passed, shall be deemed to be the property of the deceased which has come to the hands of the son as his legal representative. A fiction is introduced. As Cave, J., observed in Quean v. Norfolk Council (1892) 60 L.J. Q.B. 379 : 65 L.T. 222 : 56 J.P. 7.

When you talk of a thing being deemed to be something, you do not mean to say that it is that which it is to be deemed to be. It is rather an admission that it is not what it is to be deemed to be, and that, notwithstanding it is not that particular thing nevertheless, for the purposes of the Act, it is to be deemed to be that thing.

15. Apart from Section 53, a Hindu son could not be made liable in execution as his father's legal representative in respect of property which was not property in which the father had any right or title at the time of his death. The language of the section seems to me sufficiently wide to include a liability incurred by the father which is enforceable against property in the hands of his son, whether the liability was incurred by the father in his capacity of manager or personally. In both cases it is the Hindu Law which attaches to the property this liability.

16. In Atul Krishna v. Lala Nandanji 14 Pat. 732 : 157 Ind. Cas. 53 : A.I.R. 1935 Pat. 275 : 16 P.L.T. 393 : 1 B.R. 691 : 8 R.O. 69 the view taken by one of the learned Judges, Agarwala, J. that Section 53, is intended only to deal with the case of a joint Hindu family and to have no application to a separated Hindu family. As matter of history it is known that the section was introduced to set at rest a question upon which there had been a divergence of opinion in the Courts concerning the right of a decree-holder to execute the decree after his judgment-debtor's death against ancestral property which had passed by survivorship to the judgment-debtor's son. The state of the law previous to an amendment may be considered in the interpretation of the amending enactment, and it is permissible to use this knowledge for the purpose of ascertaining the remedy or alteration which the Legislature intended. But it is not a rule of construction that the language of an amending or new provision is to be limit ed to the particular matter intended to be altered if, in the ordinary and natural sense of the words employed, the enactment is capable of a wider application.

17. I think that Section 53 covers a case such as the present where there is a decree against the father, in respect of a pre-partition debt binding on the share of property allotted to the son in the partition. In such circumstances, for the purpose of Section 50, the son is to be deemed to be the legal representative of his deceased father in respect of the share taken in the partition by the son. This is no hardship to the son. It is merely a matter of procedure how the creditor shall enforce his right of making him liable for the father's debt. It has been held that in the execution proceedings, though the fact of the debt is not open to dispute, the character of the debt and its bearing upon the son's obligation to pay are matters which can be challenged as questions arising in the execution. Further, under Section 47(3) the son can raise the question whether he is a legal representative for the purpose of Section 50. And if the debt is shown to be of such a character that the son is relieved of his obligation, the condition required by Section 53 to his being fixed with the liability of a legal representative will be wanting.

18. On the question whether the debt in the present case was a debt incurred by the father prior to the partition, I am content to accept what my brother Venkatasubba Rao, J. has stated in Ramasubramania v. Sivakami Animal : AIR1925Mad841 that the word in the texts which is translated 'debt' has a wider significance than a present obligation to pay a liquidated sum of money, which is the ordinary meaning of the word. It would include a liability for mesne profits incurred by the father before partition although the actual liability was not determined in a suit until after the partition. It will be a pre-partition debt in the sense in which the word debt is used in the texts. For these reasons I think the civil miscellaneous appeal should succeed.

Venkataramana Rao, J.

19. I agree that this appeal should be allowed. The facts are fully stated in the judgment of my learned brother Venkatasubba Rao, J. and it is unnecessary to re-state them. I shall content myself with stating a few facts which are necessary for the disposal of the point on which I seek to rest my decision. At all material times in this litigation defendant No. 5 and his son, the respondent in this appeal, were members of an undivided Hindu family. The property to which the present claim relates was purchased by defendant No. 5 for and on behalf of the joint family which at that time consisted of defendant No. 5 and defendants Nos. 6 and 7, his then undivided sons by the first wife. It was on the date of the acquisition subject to a mortgage. Subsequent to the purchase the mortgagee brought a suit to enforce the mortgage impleading defendant No. 5 as a purchaser of the equity of redemption. Defendant No. 5 represented his family in that litigation. There was a decree for sale and in execution of the decree the mortgagee purchased the property and the present suit has been instituted based on that purchase to recover possession of the property and for mesne profits in respect thereof. The plaintiffs impleaded not only defendant No. 5 but also his sons defendants Nos. 6 and 7. On the plea raised by defendants Nos. 6 and 7 that they ceased to have any interest in the suit properties by virtue of a partition effected in the family in and by which the suit properties fell to the share of defendant No. 5, they were exonerated from the suit. At the said partition defendant No. 5 obtained the said properties for himself and his son, the present respondent, who continued to be members of an undivided Hindu family. On December 21, 1925, the suit was dismissed and there was an appeal against the said decree to the High Court. The High Court pronounced judgment on May 3, 1933, decreeing possession to the plaintiffs and directing the ascertainment of mesne profits, and a decree for mesne profits was ultimately passed on April 3, 1935. Two months later defendant No. 5 died and in February 1936 the present application was filed to recover the amount by sale of the properties is the hands of the present respondent. It was resisted by him on the ground that during the pendency of the appeal there was a partition between him and his father in and by which the suit properties fell to the share of the father and by reason of the said partition the properties in his hands could not be rendered liable in execution on the basis of a decree obtained against his father alone. The lower Court gave effect to his contention.

20. It is contended in appeal that by virtue of Section 53, Civil Procedure Code, the present respondent can be rendered liable in execution of a decree against the father inspite of the partition. It seems to me unnecessary to go into this question on the facts of this particular case. A father in a joint Hindu family, apart from certain rights which he gets by virtue of his position as a father in Hindu Law, is also the head and manager of the joint family. As pointed out by their Lordships of the Privy Council in Suraj Bunsikoer v. Sheo Prasad 5 C. 148 : 6 I.A. 88 : 4 C.L.R. 226 ; 4 Sar. 1 the father is in all cases naturally and in the case of infant sons necessarily the manager of the joint family estate. By virtue of such position as manager, the father has got the power to represent the family in all transactions relating to the family. He can sue and be sued as representative of his family. That a manager can represent the family in litigation has never been doubled and has been laid down as pointed out in Kuttayan v. Mammanna Rowthan 35 M. 681 : 18 Ind. Cas. 195 from the earliest times by the Privy Council. Where the suit relates to a joint family property and the parson sued is either the father or the eldest member, the accredited head of the family, it must be presumed that he was sued as representing his family and he need not be described as such in the pleadings, nor should the decree be specifically passed against him as such. In Bissassur Lai Sahon v. Luchmesur Singh 5 C.L.R. 477 : 6 I.A. 233 ; 4 Sar. 76 : 3 Suther 686 one Mosahab was sued as the heir of his grandfather Nath Dass for recovery of about Es. 39,000 on account of the rents of a certain Mouzah Ramnugger and it is stated that Nath Dass had taken a lease of that from 1847-1854, and a decree was passed to be recoverable from the property left by the deceased Nath Dass. In execution of the said decree, Mouzah Muddunpore which belonged to the joint family was sold. In the suit Chooman, an undivided brother of Mosahab, was not joined. The question arose as to the validity of the execution sale and how far it is binding on both the brother or either of them. Their Lordships of the Judicial Committee held the sale to be valid and binding against both, and observed thus:

Acting on the principle which follows from their finding that this family was joint, it must be assumed that Mosahab Dass is sued as a representative of the family and that it must further be assumed that Nath Dass in taking the lease of the Mouzah here referred to, Ramnugger, in respect of which the rent was due must be assumed to have taken it on behalf of the family, and that the debt must be deemed to be a debt from the family.... Looking to the substance of the case, this decree is a decree against the representative of the family in respect of a family debt and that it is one which could be properly executed against the joint property of the family and that Muddunpore was a part of that joint property.

21. This decision clearly lays down that where a decree has been obtained against the manager as representative of the joint family in respect of a joint family liability, it will be binding on his undivided brothers and the entire joint family property can be taken in execution though the undivided brother was not made a party to the suit. This principle would a fortiori apply to the case of a father and son. I think it is necessary to refer to the other Privy Council decision as they have been already dealt with at length by my learned brother Venkatasubba Rao, J., in his judgment. Therefore, where a father or other manager is sued as representative of a family, the other members of the family must be held to be substantially 'parties to the suit through such manager. The fact that they are not parties eo nomine will not render them any the less parties to the suit. It was on this principle held that where a manager dies during the pendency of the suit or after decree, the person who succeeds him as manager can be brought on the record and the other members of the family need not be made parties. A judgment against a person sued in a representative character is a judgment against every individual member covered by the representation and therefore the bar of res judicata is held to apply to a member of a family not a party eo nomine to a litigation represented by its manager: vide Lingan Gowda Dod v. Basan Gowda . Once the liability is declared a family liability, every item of the joint family property is bound to satisfy that liability: the question of division or non-division hardly arises.

22. The principle of Hindu Law is that members who are united at the time a joint family liability is incurred, are not absolved from their liability by the fact that they became subsequently divided: vide Chelamayya v. Varadayya 22 M. 166 : M.L.J. 3. So far as creditor is concerned, he is entitled to have recourse to every item of the joint family property so long as it is in the hands of the persons who; are under the law liable for his debt. When they must be held to be parties to the suit, it is immaterial what the character of the property in their hands is, whether it is still undivided property or has become separate property by division. In this case, at the time of the acquisition, at the time of the first partition, at the date of the institution of the suit and at the date of the institution of the appeal, defendant No. 5 was sued as a representative of his family and he effectively represented the family and thus the present respondent. The question is did that representation cease by virtue of the partition before the date of the decree in the High Court? The suit having been properly constituted, any severance of status between several members of the family would not divest the representative character of the manager therein till the other members choose to disaffirm it ; he was entitled to carry on the litigation for and on behalf of the respondent and can be held accountable in respect thereof. The estate of a person dying during the pendency of a suit was held to be fully represented by one of his several heirs brought en the record in his place but only for that parpose, much mere so in respect of a transaction concerning the joint family, the manager who is empowered by law to represent the other members who are interested therein must be deemed to continue to represent them till the transaction is completed as until then the joint interest in the transaction cannot be said to have ceased. But in this case it seems to me it would not lie in the mouth of the present respondent to deny the representative character of his father At the date of the partition he must be deemed to have been quite aware of the pending litigation and when the suit property was assigned to the share of the father he must be deemed to have also been clothed with the necessary power to defend the appeal in regard thereto. If the present respondent thought that his father, should not be allowed to represent him, it was his duty to have come on the record. Having failed to do so, he is precluded from now asserting that defendant No. 5 no longer represented him. Therefore the property in the hands of the present respondent is liable to be taken in execution of the decree for mesne profits passed in this case.

23. In this view it seems to me the argument based on Section 53, Civil Procedure Code, does not arise. I may add that I also share the doubts entertained by my learned brother Venkatasubba Rao, J. in regard to the correctness of the decision which takes the view that in respect of a decree obtained prior to partition against a father alone, execution cannot be levied subsequent thereto against the co-parcenary property in the hands of the son. I agree in the order proposed by my learned brother Venkatasubba Rao, J.


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